A Criminal Enterprise

Louisiana v. Barbour: Non-unanimous verdicts hinder justice in the South

Posted in Cases, News by Sophie Cull on February 2, 2011

Despite showing interest in a cert petition dealing with the issue of non-unanimous juries, the US Supreme Court has again decided to let the issue alone, rejecting to hear Herrera v. Oregon earlier last month. The Court had asked the state of Oregon to file a response to the petition late last year, but passed over the petition in silence on January 10.

Louisiana defendant Troy Barbour is also awaiting a response from the SCOTUS to his cert petition dealing with the same issue. The ABA has filed an amicus in support of his appeal, but it remains to be seen whether Barbour’s case will catch the Court’s attention.

In Barbour’s petition, defendant cites Justice Kennedy in providing an analysis of jury dynamics and the importance of non-unanimous verdicts:

The dynamics of the jury process are such that often only one or two members express doubt as to [the] view held by a majority at the outset of deliberations. A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury. The requirement of jury unanimity thus has a precise effect on the fact-finding process, one which gives particular significance and conclusiveness to the jury’s verdict. Both the defendant and society can place special confidence in a unanimous verdict.

United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir.1978)

The Equal Justice Initiative’s recent report on race and jury selection discusses the importance of the racial diversity of juries in order to promote the inclusion of different perspectives. Compared to diverse juries, all-white juries are more likely to make factual errors, are less likely to correct their mistakes, are likely to spend less time deliberating, and consider a smaller range of perspectives.

Reflecting on Justice Kennedy’s comments, it seems that we should consider the impact of non-unanimous convictions in a state like Louisiana where convictions are handed down by nearly all-white juries. If such juries are more likely to make mistakes and spend less time deliberating, then surely they shouldn’t be able to expedite the deliberative process by leaning on non-unanimous verdicts.

A Dearth of Precedent: What Happened to Racism?

Posted in Uncategorized by Bidish J. Sarma on November 30, 2010

It turns out that an exhaustive Lexis-Nexis search for Louisiana Supreme Court cases in the past ten years that discuss “racism” or “race discrimination” or “racial discrimination” yields just 31 results. Of those 31 cases, 27 are capital direct appeals over which the Court has mandatory jurisdiction. These death penalty cases have often raised claims that the State discriminated against racial minorities in the selection of grand or petit jurors. Remarkably, only four other Louisiana Supreme Court cases in the past decade even mention “racial discrimation.” One of these cases involves disciplinary action against two lawyers, and only makes a passing reference to a race discrimination lawsuit one was retained to litigate. See In Re Kelly, 857 So. 2d 451 (La. 2003). Another involved a lawsuit by former police officers that alleged racial discrimination and harassment against the Baton Rouge Police Department. However, the Louisiana Supreme Court’s opinion did not deal with these heavy allegations, but instead simply remanded the case to lower courts to allow the Police Department to pursue its argument that the plaintiffs’ claims had prescribed (an argument which no lower court recognized as a winning argument). See Alcorn v. City of Baton Rouge, 863 So. 2d 517 (La. 2004). In the end, then, only two Louisiana Supreme Court non-death-penalty opinions meaningfully discuss race discrimination. In one of those cases, the Court reversed the intermediate appellate court’s finding that a civil service board violated the African-American plaintiff police officer’s constitutional right to equal protection when it imposed a fitness qualification upon him at the time he was up for promotion although no similar previous qualification had ever been imposed on white officers. See Moore v. Ware, 839 So. 2d 940 (La. 2003). The Louisiana Supreme Court was not impressed with Mr. Moore’s claim of race discrimination, holding “the facts of the present case do not establish that Moore carried his burden of proving a prima facie case of racial discrimination.” Id. at 950. In the fourth and final non-capital case, the Louisiana Supreme Court conducted a thorough review of the party’s peremptory strikes to find that the civil defendant has intentionally discriminated against African-American prospective jurors on the basis of their race. See Alex v. Rayne Concrete Serv., 951 So. 2d 138 (La. 2007). Perhaps what is most remarkable about the Alex case is that the Louisiana Supreme Court has never engaged in such a detailed review of a claim of race discrimination in jury selection in a death penalty case, where much more is at stake.

The dearth of recent high court rulings on race in this state is surprising, especially given that: the U.S. Supreme Court in 2008 found that Jefferson Parish prosecutors discriminated on the basis of race in the selection of Allen Snyder’s capital jury; the Jena 6 episode erupted in December 2006; and incidents like the Danzinger Bridge shootings occurred in Katrina’s wake just five years ago. It is undeniable that race and racism still matter in Louisiana. So, why is so little apparently going on in front of the state’s highest court? I can think of a few possibilities, though these are all speculative:
(1) The Louisiana Supreme Court has declined to utilize its discretionary review power in cases which raise issues of racial discrimination, but has been compelled to confront those issues in death penalty cases because state law provides that the Court must decide those cases on the merits;
(2) Civil suits alleging race discrimination are disproportionately settled outside of court;
(3) Potential plaintiffs in Louisiana lack faith in the judicial system’s ability and willingness to decide claims of discrimination fairly;
(4) A paucity of (pro bono/public interest) civil rights lawyers interested in identifying issues and equipped to litigate them means that individuals with legitimate claims can’t afford or find representation;
(5) As some legal commentators recently explained, claims are difficult to mount because systems rather than identifiable and particular individuals perpetuate covert discrimination: “outcomes are rarely attributable to overt racial discrimination; instead, they result from patterns of implicit bias and institutionalized racism that tend to repeat and normalize the status quo.” Eva Paterson, et al., The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 Conn. L. Rev. 1175, 1179 (2008);
(6) The U.S. Supreme Court’s Equal Protection’s “intent” doctrine has made it nearly impossible to prove that the State has intentionally discriminated on the basis of race. See, e.g., id. at 1190-91;
(7) Individuals are reluctant to make allegations of race discrimination because they “are politically incendiary.” Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 1103 (2009).

Perhaps the explanation is some combination of these factors, plus others I haven’t identified. Whatever the cause, the result is alarming. The reality is: “While the Jena 6 incident was a disturbing and highly visible reminder of the continued prevalence of racism in America, the equally troubling reality is that far less visible forms of racism and discrimination occur everyday and go largely unchallenged.”  Eva Paterson, et al., The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 Conn. L. Rev. 1175, 1177 (2008). Incremental steps must be taken to address each of the factors contributing to the problem of unchallenged racism. But, there certainly exists an opportunity for the courts to step up and meaningfully analyze the claims that are actually presented to them. At the Louisiana Supreme Court, a logical first step would be to give capital defendants meaningful appellate review when they make substantiated claims that the State discriminated against prospective jurors in their cases. Then, it can step beyond the world of mandatory jurisdiction and provide litigants with a realistic hope that their concerns will not fall upon deaf ears. But, a simple Lexis search leaves one to wonder whether the fight for racial equality is fading, despite clear evidence for its need.

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Williams v. Louisiana – Cert Conference on May 13th

Posted in Cases, News by Bidish J. Sarma on May 6, 2010

The previous post contains a link to our cert petition in Williams v. Louisiana, which asks the U.S. Supreme Court to weigh in on the issue of proportionality review of capital sentences in Louisiana.  Since the time of that post, the State has filed its Brief in Opposition, and we filed a Reply.  The Court is set to meet on the petition on May 13th. 

Both the Louisiana Supreme Court and the State have taken the position that race did not play a role in the death sentence in this case because there is no evidence that Mr. Williams intended to kill the victim because of her race.   But, there is disquieting statistical evidence that the race-of-the-defendant and race-of-the-victim play a significant role in determining which defendants receive death sentences out of East Baton Rouge Parish.  The last thirteen people sent to death row from the parish are African-American, and there is evidence a black man convicted of killing a white woman has a 1 in 2 chance of being sentenced to death, while a white man has never been sentenced to death for killing a black person in the last thirty years (or perhaps ever).

The State’s Brief in Opposition can be found here: State’s Brief on Cert 

Our Reply to the State’s Brief in Opposition can be found here: Cert Reply to BIO FINAL

Cert Petition on Proportionality Review in Louisiana

Posted in Uncategorized by Bidish J. Sarma on March 16, 2010

On March 10, our office filed a cert petition in the case Williams v. Louisiana.  The petition asks the Supreme Court to review his core claim that the current administration of the death penalty in Louisiana leads to unconstitutional arbitrariness.  The question presented is: “Whether the Petitioner’s death sentence violates the Fifth, Sixth, Eighth, or Fourteenth Amendment where: (1) the Louisiana Supreme Court failed to provide meaningful appellate proportionality review; and (2) the jury did not determine beyond a reasonable doubt that death should be imposed.”

The cert petition brings attention to the Louisiana Supreme Court’s woefully deficient proportionality review.

You can view the petition in its entirety right here: Cert Petition FINAL

Sentencing Law & Policy Blog Features Rob’s Piece on “The Racial Geography of the Federal Death Penalty”

Posted in Uncategorized by Bidish J. Sarma on February 9, 2010

The piece, co-authored by blog contributor Rob Smith and attorney G. Ben Cohen, is available on SSRN.  Professor Berman at Sentencing Law & Policy recently spotlighted the piece here.

The abstract states:

Scholars have devoted substantial attention to both the over-representation of African-Americans on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims.  This attention has not provided an adequate explanation for (much less resolution of) these disquieting racial disparities.  Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences.  By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences occur disproportionately where the expansion of the venire from the county to the district level has a dramatic demographic impact on the racial make-up of the jury.  This inquiry demonstrates that the conversation concerning who should make up the jury of twelve neighbors and peers – a discussion begun well before the founding of our Constitution — continues to have relevance today.

After documenting both the historical and racial relationships between place and the ability to seat an impartial jury, and the unique impact demographic shifts in the jury pool have on death penalty decision making, we propose three possible solutions: 1) A simple, democracy-enhancing fix: a return to the historical conception of the county as the place of vicinage in federal capital trials; 2) A Batson type three-step process for rooting out the influence of race on the decision to prosecute federally; 3) Voluntary measures by the Attorney General to mask demographic and location identifiers when deciding whether to provide federal death-authorization.  We explain why a return to county-level jury pools in federal capital cases (whether through statutory construction, legislative change, or through the authority of an fair-minded Attorney General) prospectively limits the impact of race on the operation of the federal death penalty, without establishing the intractability of the federal death penalty as a whole.  Finally, we observe that any effort to study the federal death penalty cannot merely address those federal cases in which the Attorney General has considered whether to approve an effort to seek the death penalty, but must also include an assessment of the cases prosecuted in state court that could be prosecuted federally and the prosecutorial decision concerning when and whether to prosecute in federal court.

The piece poses a lot of interesting questions about race, federalism, jury selection, and the geographic arbitrariness of the death penalty.  As always, we invite commentary and discussion here.

A Look Back at What Professor Gates’s Arrest Meant for Our Country

Posted in Uncategorized by Bidish J. Sarma on September 10, 2009

This blog primarily focuses on developments and issues in criminal justice.  Today, however, I wanted to reflect a little on a slightly distinct, but nevertheless inseparable issue: racism and the July 16 arrest of Professor Gates outside of his home in Cambridge, Massachusetts.  I’ve been thinking a little bit about that incident, President Obama’s initial reaction, his apology, and the ultimate “conversation” over a beer at the White House.

In all honesty, little can be said that has not already been pounded home by other spectators and lay observers.  But, with a little more time and distance between us and the arrest (not to mention the popular reaction), I think it is worth asking what we have learned, and what we should have learned.

In my view (one largely informed by a few long conversations with my co-blogger and friend Rob), I really think our nation missed out on a learning opportunity.  It seemed like the media and the public raced to the bottom – painting those with opposing views as extremists, and digging in their heels in a self-righteous proclamation of one view (“racism still alive, they just be concealing it”) or the other (“there they go again, playing the race card”).  Unfortunately, we missed out on a rare chance to engage in an open, honest, and serious discussion about racism, power, and perception in our society – one that could have rivaled the depth reflected in President Obama’s famous Philadelphia campaign-trail speech.

I think that Professor Lani Guinier captured it best in her piece entitled “Race and Reality in a Front-Porch Encounter.” As Guinier put it,

Truth be told, however, the Gates-Crowley encounter did not begin on that porch. Nor will it will end at a White House talkfest, even in an atmosphere leavened by beer. And much more was at play than a conflict about deference or duty.

In fact, the alleged “loud” and “tumultuous” tone of Gates’s voice, and the clanging of the cuffs on his wrists, were the sounds of two different versions of our racial history colliding with our collective amnesia about that history.

In version one, the white cop is the racist. Here, Gates and Crowley were playing out roles assigned to them circa 1963 and little changed since. This version transforms the decorated diversity-training sergeant into a stand-in for the vicious white cops with the police dogs and fire hoses who attacked innocent black children marching for their rights in Birmingham, Ala. The esteemed black professor is an updated stand-in for James Meredith, a black man in Mississippi in 1962 asserting his well-earned place in a citadel of knowledge while a white mob gathers to taunt him.

Contrast version two of race in America: Here it is Gates who is the racist. In response to the officer’s polite request to show identification in his own home, Gates exploded, shouting and yelling that the sergeant was a racist. In this account, Gates, and he alone, racialized the encounter. He escalated a routine procedure into an international publicity stunt when he exclaimed, according to a police report written in all caps, “THIS IS WHAT HAPPENS TO BLACK MEN IN AMERICA.”

In both of those iconic portraits, the solution is simple. In version one, we should “out” the racist cop. In version two, we should simply shut down the use of the “r” word, except as it applies to people of color who apparently have yet to get the memo. Neither of the accounts tells the whole story; each freezes both men in a snapshot of history that is more than 40 years old.

And, Professor Guinier also captured the lessons we should learn when we look back at the infamous arrest:

It is time, in other words, for both versions of the Gates-Crowley encounter to move beyond the 1963 lock on our imagination. Sergeant Crowley is not a virulent Bull Connor. Nor is Professor Gates merely an elegant and more internationally savvy adaptation of a quietly suffering James Meredith. Both of the stock versions of what happened on the Cambridge porch in 2009 are incomplete caricatures.

What might we learn instead about contemporary race matters if we could move beyond the stock stories?

First, history does matter. The undisputed historical backdrop for the porch encounter includes 240 years of chattel slavery, 100 years of Jim Crow, and 400-plus years of intergenerational wealth transfer during most of which time black people not only owned little property—they were property. In roughly 50 of the first 72 years of our country’s first century, the presidents of the United States themselves owned slaves. In the infamous Dred Scott case, in which the U.S. Supreme Court declared that a black man had no rights that a white man need respect, five of the justices were from slaveholding families.

Many self-declared “postracialists” who assume that black poverty is a function of laziness or lack of personal responsibility ignore history’s important legacy in the form of a systemic process still at work. But as William A. “Sandy” Darity, a professor of public policy, African and African-American studies, and economics at Duke University, has reminded us (most recently in an unpublished article written with Darrick Hamilton, an assistant professor at Milano the New School for Management and Urban Policy), black people and Latinos still suffer from crushing gaps in wealth that are intergenerational, not personal, and which, in comparison to the white population, are truly mind-boggling. Darity has pointed out, for example, that, according to 2002 data, the median white household has a net worth of $90,000, Latino households have a net worth of only $8,000, and black households a mere $6,000. Black people with a net worth of $6,000 “would have to save 100 percent of their income for three consecutive years,” Darity says, to close the racial wealth gap, a gap that is the direct result of having been property for some 240 years and having been denied, in so many cases, the opportunity to own property for close to 100 years thereafter.

Neighborhood poverty then cements the historic wealth gap. Continuing racial segregation—which isolates both middle-class and poor black people in high-poverty, high-crime neighborhoods—reinforces the gap. Even now, the children of middle-class black parents who have good jobs but live in poor neighborhoods experience downward economic mobility, through no fault of their own. According to a just-released study by the Pew Charitable Trusts, neighborhood poverty outweighed parents’ education, employment, or marital status in explaining increases in black poverty. The study found that black children born between 1985 and 2000 are 10 times as likely than white children to grow up in neighborhoods with a poverty rate of at least 20 percent. The same study found that half of black children born between 1955 and 1970 in middle-class families (those with incomes of $62,000 or higher in today’s dollars) grew up in high-poverty neighborhoods, while almost no white middle-income children grew up in poor areas.

That finding is important, because it is the physical association between black people and poverty that contributes to cognitive assumptions about black criminality, and which results in the disproportionate attention that black males of all income levels receive from the police. As Glenn C. Loury, a professor of economics and social science at Brown University, recently wrote in a New York Times opinion essay, our policy of mass incarceration is having a range of “negative and self-defeating” effects on communities where large numbers of young black and Hispanic men live.

Second, we need to become racially literate, not postracially blind. Racial literacy is the capacity to conjugate the grammar of race in different contexts and circumstances. Like the verb “to be,” race takes a different form when we speak about “I am” versus “you are” compared with “he is.” In other words, race still matters at a psychic, economic, and sociological level for people of color, even for those who are middle class or multiracial. It may not reveal itself through the spewed invective of a Bull Connor. It is less overt but nonetheless real. It is sometimes a virulent subtext, at other times a nuanced dynamic. But always the meaning of race needs to be interrogated and conjugated carefully in light of relevant local circumstances and their historic underpinnings.

All Americans, not just people of color, need to be better schooled in the subtle yet complex ways that race actually works in the 21st century. Racial literacy requires familiarity with unconscious bias as well as structural racism. It demands a far more nuanced approach than typical charges of racism or race-carding.

To understand what happened on that Cambridge porch, we must free ourselves of the stereotype that racism is always overt—a police officer with a dog and a fire hose. Race and racism are today more like passive smoke. We all inhale the toxic fumes even if we are not the one lighting up the cigarette. And if we take the time to lift the curtain that postracialists insist on pulling over our eyes, we might begin to realize that a porch encounter ostensibly about racial profiling is nevertheless a sign of larger and more systemwide injustices.

Racial literacy would help all of us understand that behind the two force fields competing for respect on that Cambridge porch is a criminal-justice system that exercises outsized control as the major urban-policy instrument for controlling the poor. We have focused our resources disproportionately on policing and criminalizing the poor. As a result, we have too often put our police officers into the positions of legislators, prosecutors, judges, and juries—positions for which they are not qualified and that they should not be expected to fulfill—even in well-to-do neighborhoods like the one in Cambridge.

At the same time, if we read race carefully, we might learn that the conditions of profiling in the criminal-justice system affect blacks and Latinos first and most acutely, but that the same overreliance on the system as our major instrument of urban policy can disempower poor and working-class white people as well. Here I am referring to the fact that the school-to-prison pipeline for young black men affects poor rural white men as well. The lack of a robust economic-stimulus program to combat depression-level unemployment within the black community also affects rising unemployment within many predominantly white counties in the Midwest. Or consider the higher rates of life-threatening conditions like diabetes, high blood pressure, and heart attacks among black and Latino men—which are actually a signal that we need to pay more attention to the health-care crisis that is exacerbated by the anger, hopelessness, and diet in poor urban and rural communities around the country. And while close to one-third of black households have no or a negative net worth, Darity points out that the same is true for 13 percent of white households.

The point of an effort to gain greater racial literacy is not simply to figure out what each man should or could have done differently to de-escalate the porch summit. The point is to explore their encounter as a potent learning moment for the entire country. If we learn to “read race” in context and become more racially literate, we might finally start deliberating about the underlying structural problems and historical challenges raised to consciousness by this porch scene. And rather than assign blame or settle for a photo opportunity, we might just come together to address an American legacy that affects us all.

Thank you, Professor Guinier.  I certainly could not have said it better myself.

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The Death Penalty in New Orleans: The Latest Sentence Further Conceals the Truth About the Government’s Charging Practices

Posted in News by Bidish J. Sarma on August 31, 2009

On August 29th – the notorious anniversary of Hurricane Katrina’s landfall in southeast Louisiana – an Orleans Parish jury handed down a death sentence for the first time in over twelve years.  The sparse use of the death penalty in Orleans Parish invites different reactions.  Some believe that juries in the jurisdiction are “soft on crime,” and claim that their unwillingness to impose the death penalty only emboldens criminals in one of the most dangerous cities in the country.  Others believe that these juries are sensitive to the complex realities that undergird the city’s deplorable crime rate.  While many speculate about what Michael Anderson’s death sentence means for the DA’s charging practices, in this post I want to explore a hidden issue that influences capital cases out of New Orleans.

People often say that, on a national level, Hurricane Katrina exposed racism that quietly resided under the surface of the popular national consciousness.  People from all over the country expressed shock and horror when they heard, for example, about the Danzinger Bridge Incident or the anti-African American violence in Algiers Point.  Unconscious/aversive/implicit racism still flourishes in our country, and it is an issue we must address.  But, as Katrina made obvious, racism in the South is not always so thinly-veiled.   One alarmingly common local response to the fact that Orleans juries rarely hand down death sentences is essentially that “they” “protect their own” without regard to public safety.  This crude view makes almost no effort to cover its racial undertones.  (When called out, a proponent of the view may claim that “they” simply means “the residents of Orleans Parish.”  But, we all know whom “they” really refers to: the African Americans living in the city.  Even if it is true that juries with greater African American representation give out fewer death sentences, the view implies that African Americans should not serve on capital juries, and should not make decisions about the crime that affects their lives and their community.).  Nevertheless, one may still expect locally-elected public officials and federal lawyers to decry racism as obvious as the kind entailed by the crude view.  Instead, those responsible for prosecuting crimes in the area actually embrace it.  In the process, they undermine the Fifth, Sixth, Eighth, and Fourteenth Amendment Amendments to the US Constitution.

Before this Saturday, an Orleans Parish jury had not sentenced a defendant to death in 12 years.  But, that does not mean that criminals convicted for crimes committed in Orleans have not received death sentences in that time.  Indeed, several have.  In federal court.

When cases are prosecuted in federal court – here, the Eastern District of Louisiana (which encompasses Orleans Parish) – the jury is culled from the district as a whole, not just the county or parish where the crime occurred.  Not surprisingly, this larger pool of potential jurors in the Eastern District has a far lower percentage of African Americans.  The decision to prosecute an Orleans case federally results in the transformation of the jury demographics from a parish that is predominantly (61%) African-American to a venire that is predominantly (65%) white.

My colleague and mentor, Ben Cohen, currently represents a capital defendant in federal court.  The case arises out of a homicide committed during an armed robbery.  His research has revealed some eye-opening information:

  • every single defendant sentenced to death in the Eastern District of Louisiana has been black;
  • every single defendant authorized as death-eligible in the Eastern District has been black;
  • every single defendant sentenced to death in federal court for a murder occurring during the course of a bank robbery has been black;
  • in every single one of these instances in which a black defendant has been sentenced to death for a killing during the course of a bank robbery, the victim has been white.

Ben’s client is the latest of 42 African-American and Hispanic federal capital defendants alleged to have committed a crime within the jurisdictional confines of Orleans Parish that has been prosecuted federally and have been certified as eligible for the death penalty.  His research initially indicates that no person has been charged with a federal capital crime for an offense that occurred within the Eastern District, but outside of Orleans Parish.  Not surprisingly, the predominantly white parishes outside of Orleans have had little trouble sentencing defendants to the death penalty, particularly African American defendants. (For example, we can look to neighboring Jefferson Parish.  Out of twenty-nine capital cases that have been indicted since 1998 and subsequently proceeded to a capital trial in Orleans, only one has resulted in a death sentence (less than 4%).  In Jefferson during the same period, fourteen cases have gone to trial and ten have resulted in death sentences (71%)).

Of course, the government may have legitimate reasons to prosecute some of these cases in the federal jurisdiction rather than in the parish.  But, the statistics raise serious questions about what really motivates prosecutors to take cases from Orleans to the federal level in the majority of these cases.

Lawyers need to think about what this practice means under the Constitution.  The Fifth Amendment protects due process, the Fourteenth Amendment ensures equal protection of the laws, and the Eighth Amendment prohibits death sentences based on the influence of arbitrary factors such as race.  The unprincipled (or, worse yet, the race-based) decision to prosecute in federal court arguably encroaches on all these constitutional rights.  Most interestingly, there is the Sixth Amendment.  Our laws are rooted in the belief that a defendant should be tried by representatives of the community in which the crime was committed – this is called the vicinage presumption.  Prosecutors in Orleans frequently trample that presumption and take the case to federal court, in the hopes of securing a less representative and more pro-death jury.

Since Katrina struck, the fear that crime will spread out from New Orleans to neighboring communities has only intensified.  This fear – rational or not – is unfairly exploited when jurors from those outside communities determine the punishment that an individual who committed a crime in Orleans should receive.

The sentence in Michael Anderson’s case certainly makes me wonder how the DA will allocate his limited resources across the tragic number of homicide cases in his office.  But, the sentence, along with the conventional wisdom about juries in Orleans Parish, conceals something much more invidious below the surface.  Cases that belong in the hands of Orleans Parish community members have been taken from them.  Prosecutors have stripped a community that must honestly and openly struggle with the ramifications of rampant crime of its right to decide its own cases.  The ideas that galvanize self-righteous prosecutors to dilute the local voices that would speak on capital cases must be confronted, and must be rejected.  Four years have passed since Katrina, but all that haunted southeast Louisiana before the storm continues to wreak havoc unabated.

The Death of Death-Qualification

Posted in Uncategorized by Robert Smith on August 26, 2009

Thank you to the Crim Prof Blog for highlighting a recent article that Ben Cohen and I wrote in the Case Western Law Review. The abstract for that article, The Death of Death-qualification, is available  here, so I won’t go into too much detail. The basic gist is that both at the Founding and in Blackstone’s England, no mechanism existed that would allow the State to remove from a jury–at the outset of a capital prosecution– all those who appear to be opposed to imposing the maximum punishment allowed by law. We conclude that “modern ‘death qualification’ jurisprudence frustrates the framers’ understanding as to the role of the criminal jury. Whereas the framers’ jury had the power to rule on the constitutionality of the death penalty, though the force of any ruling applied only to the particular case on which they sat, a prospective juror today cannot even sit on a capital jury unless she promises that she would be able and willing to impose a sentence of death.”

Attempting to move this argument from the academic into the real world, we filed a cert petition in Campbell v. Louisiana (which was rejected late last year, but the Petition and amici briefs are available from Scotus Blog here (scroll down the list of Petitions to Watch)). In order to prevail on the historical argument in a state court case, we need to prove that (1) historical understanding is the proper methodology and (2) our historical arguments are right, and thus the state statute allowing for the for-cause removal of citizens who have reversations about whether the death penalty is a proper or even constitutional punishment. BUT, as Ben recently noticed shortly after assuming his role as counsel on a federal death penalty appeal, there is NO federal statute that authorizes the exclusion of such jurors at the federal level.

So, at the federal level, where does the source of the power to exclude or “death-qualify”  jurors come from? Not a statute (unlike in Witherspoon, Adams, and Witt).  And, if our historical argument is correct, not from common law either.

This isn’t an academic exercise or even an ideologically driven quest to re-fasten the Sixth Amendment to its historical underpinnings. Death qualified juries severely undermine the fairness of capital trials—both at the guilt and penalty phases. Social scientists have demonstrated, and even the noted District Attorney Joshua Marquis admits, that death qualification results in juries that are more likely to convict at the guilt phase: “I won’t deny that a death-qualified juror is probably more likely to be willing to look at a guilty verdict. I think that the difference is negligible.” (See NYT article below).  Also, it is likely true that who receives a death sentence is more easily predicted by an examination of the quality of voir dire lawyering than in the severity of the crime (defense lawyers who use the “Colorado Method” of selecting a jury, and who do it well,  rarely see a death verdict returned against their clients).

Moreover, the death-qualification process most likely operates to exclude a disproportionate number of racial and ethnic minorities. This is not the only way death-qualification strips the defendant of a fair cross-section of the community. Adam Liptak summarizes the findings of empirical studies by Professor Brooke Butler’s and others in a 2007 NYT article that can be found here:

““They tend to be white,” she said. “They tend to be male. They tend to be moderately well-educated — high school or maybe a little college. They tend to be politically conservative — Republican. They tend to be Christian — Catholic or Protestant. They tend to be middle socioeconomic status — maybe $30,000 or $40,000” in annual income.

In a study to be published in Behavioral Sciences and the Law, a peer-reviewed journal, Professor Butler made an additional finding. “Death-qualified jurors,” she said, “are more likely to be prejudiced — to be racist, sexist and homophobic.”

A 2001 study in The University of Pennsylvania Journal of Constitutional Law, drawing on interviews with 1,155 capital jurors from 340 trials in 14 states, found that race played an important role in the willingness of jurors to impose death sentences.

In cases involving black defendants and white victims, for instance, the presence of five or more white men on the jury made a 40 percentage point difference in the likelihood that a death sentence would be imposed. The presence of a single black male juror had an opposite effect, reducing the likelihood of a death sentence to 43 percent from 72 percent.”

So death-qualification would not have been acceptable to the Framer’s, no statute authorizes its operation in the federal death penalty context, and its likely practical effect is to create guilt-prone juries and to exclude broad swaths of the community…. but there are at least two more  problems:

First, removing all of the voices of jurors who might not be willing to sentence a person to death undermines the ability of the Court to assess how much its citizens have cooled to the idea that capital punishment is an acceptable punishment in light of our evolving standards of dececeny. As the Court has repeatedly stated, because they are an “on-the-ground” assessment, jury verdicts  are one of the most powerful objective indicators that a particular punishment is excessive.

Second, the Witt standard, which says that jurors must not be “substantially impaired” from considering a sentence of death, is applied unevenly.* Now retired Chief Justice Calogero of the Louisiana Supreme Court forcefully articulated an example of this issue in his dissent in State v. LaDerrick Campbell:

I believe there should be a level playing field for the accused and the state in jury selection in capital cases. In this case, the majority found that the trial judge had properly excused on the state’s challenge for cause prospective juror Rosie Lee. The majority reasons, “Lee’s admission that she would consider the death penalty under certain extreme circumstances is outweighed by her consistent statements during the majority of voir dire that she would not impose the death penalty under any circumstance.” Ante, p. 84. That same rationale should have applied to the majority’s treatment of the defendant’s challenge for cause of juror Payne. Payne repeatedly expressed his presumption in favor of the death penalty and his unwillingness to even consider a life sentence unless the defendant proved the existence of mitigating circumstances “beyond a really reasonable doubt.” Therefore, this juror’s mere acknowledgment that he could consider a life sentence was surely “outweighed” by his consistently strong statements during the majority of voir dire that the death penalty was the “appropriate” sentence for this crime and that he would hold the defendant to an improperly onerous burden of proof to overcome that presumption. Thus, had the trial judge and the majority today applied the law evenhandedly, in my view, both would have found that juror Payne was no more qualified to sit on the jury than was prospective juror Lee.

I’ll end this post with three recent quotes from Justice Stevens:

Baze v. Rees, 128 S. Ct. 1520,1550 (2008)(Stevens, J., dissenting)(The prosecutorial concern that death verdicts would rarely be returned by 12 randomly selected jurors should be viewed as objective evidence supporting the conclusion that the penalty is excessive.)

Baze v. Rees, 128 S. Ct. 1520, 1550 (2008) (Stevens, J., concurring) (“Of special concern to me are rules that deprive the defendant of a trial by jurors representing a fair cross section of the community. Litigation involving both challenges for cause and peremptory challenges has persuaded me that the process of obtaining a “death qualified jury” is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction.”).

Uttecht v. Brown, 127 S. Ct. 2218, 2238-2239 (2007) (Stevens, J., Souter, J. Ginsburg, J., and Breyer, J.,dissenting) (“Millions of Americans oppose the death penalty. A cross section of virtually every community in the country includes citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases. . . . Today the Court ignores these well established principles, choosing instead to defer blindly to a state court’s erroneous characterization of a juror’s voir dire testimony.”).


*While this observation comes from reading transcripts from numerous jurisdictions, there is no hard data. Hopefully, that will soon change as I understand that a long-term study is underway. From what I can tell, the inequality happens in at least three ways.

First, jurors who repeatedly say that they cannot impose death, but then admit under defense questioning that they could consider it if the judge tells them to, etc, are still excluded on the idea that the totality of the answers suggests that the juror could not be fair. But, when a juror will not consider a life sentence, but then agrees to “just consider” a death sentence or to “follow the law” that juror is less frequently excluded for cause.

Second, judges appear to give the “can you follow the law” bit more often to jurors who will not consider life than to jurors who will not consider death. And, come on, how many people are going to tell the judge that they will not “follow the law.”

Third, prosecutors use the “you only have to consider the mitigating evidence but you can give it “any weight that you want to” … will you just consider death? Well “consider” does not equal an honest and open possibility. And the problem here is that when you oppose death on moral or religious grounds, you will not “consider” it as a sentence (even if only in name) but how many people morally or religiously oppose a life sentence (rather than just think the “guy deserves it”). And if you are not morally tied-up in the issue, then you can at least “consider” a life-sentence even if  in name only. So people who are equally unwilling to truly consider a sentence (life or death) are unequally excluded depending on whether the sentence they won’t consider is life or death.

At issue is
whether the State may – at the outset of a capital prosecution –
remove from a jury all those who appear to be opposed to
imposing the maximum punishment allowed blawThclosest historical basis for a for-causexlcusion i

C-Murder, the Framers, and the Social Scientists.

Posted in Uncategorized by Robert Smith on August 25, 2009

On August 11, 2009, a unanimous Jefferson Parish, Louisiana jury convicted Corey “C-Murder” Miller of second-degree murder in the 2002 shooting death of 16 year-old Steve Thomas. Two jurors believed  the state had not proven its case against Miller beyond a reasonable doubt. In forty-eight states and at the federal level, Mr. Miller would have walked out of the courthouse a free man [correction: he would remain subject to retrial]. But in Louisiana, which along with Oregon is one of two states that permit non-unanimous criminal verdicts, the reasonable doubts of two jurors were not enough to save C-Murder from a one-way ticket to Angola.

That might be about to change. At its first conference this fall (September 29, 2009), the United States Supreme Court will decide whether to hear the case of an Oregon man, Scott Bowen, who is asking the Court to re-examine whether non-unanimous criminal verdicts really are Constitutional. Of course, Mr. Bowen faces spotty odds of getting his Petition accepted at all—but the fact that the Court asked for a response from the State, a relatively rare occurence in non-capital cases,  translates into reason for some measured optimisim.

The other challenge that stands in the way is the splintered 1972 plurality opinion in Apodoca v. Oregon, where the Court found that no practical difference exists between unanimous and non-unanimous juries and accordingly rejected the defendant’s argument that the Constitution requires unanimity in criminal cases.

But, as the Petition in Bowen argues, the Apodaca plurality erred in both its approach and its conclusion. First, the “functional” analysis (how does a jury work in real life, Bob?) is wrong as a matter of methodology. The Court’s recent Sixth Amendment jurisprudence makes clear that when it comes to jury trial rights one must begin with Blackstone and never forget the Framers. And when we do, we find that the Framers believed “that the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours.’” Blakely v. Washington, 542 U.S. 296, 301 (2004) (emphasis added) (quoting William Blackstone, Commentaries on the Laws of England *343 (1769).

But even on its own terms the Apodaca plurality got it wrong. More than four decades of social science research indicates that unanimous juries deliberate longer, discuss and debate the evidence more thoroughly,  reach more reliable conclusions (as measured by the % of votes consistent with the  judge’s view of the evidence), and are more tolerant and respectful of dissenting voices. *For more on the empircal evidence, consult the amicus brief filed by the Charles Hamilton Houston Institute in Lee v. Louisiana (referenced and linked below)*

Moreover, non-unanimity may also promote dubious racial and gender dynamics. In Empty Votes in Jury Deliberations, 113 HARV. L. REV. 1261, 1278 (2000), former NYU law Professor Kim Taylor-Thompson  explains that minority (race, not number) views are often excluded from serious consideration when they are in the minority (number) of jurors. The article also cites studies showing the men tend to cut off the ideas of women whom they disagree with.  *The impact of race and gender in jury deliberations is more detailed in her discussion, so please read for full force.* As a prescient Justice Stewart recognized more than three decades ago: “[Ten] jurors can simply ignore the views of their fellow panel members of a different race or class [or gender].” From the first-hand reports of trial observers, both of the dissenting jurors in C-Murders’s case were African-American. So, depending on the breakdown of the rest of the jury, the trial might be an example of the Empty Votes argument in practice.

Update: The Times-Pic reports that the state failed to convince a third juror that Corey Williams was guilty, and that she only voted guilty to be able to be done with deliberations.  That article is here.

A New York Times article on the Bowen case, written by Adam Liptak, is available here.  The Petition (and amici briefs) in a Louisiana case that raised the the same issue last year is available below via link to Scotus Blog’s Petitions to Watch from 2008)

Docket: 07-1523
Case name: Lee v. Louisiana
Issue: Whether the Sixth Amendment, as applied to the states through the Fourteenth Amendment, allows criminal convictions based on non-unanimous jury verdicts.


The Legal Times wrote a relevant article on the Lee case, which applies with equal force to the Bowen and C-Murder cases: http://www.scotusblog.com/wp/conference-call-do-guilty-verdicts-have-to-be-unanimous/

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